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MegaUpload defence begins in extradition hearing

By | Published on Wednesday 4 November 2015


Having been unsuccessful in their various attempts to further postpone their clients’ extradition hearing, lawyers representing the former management of long-defunct file-transfer platform MegaUpload are now finally presenting arguments as to why they think Kim Dotcom et al should not be extradited to the US to face criminal charges of money laundering, racketeering and rampant copyright infringement.

While there have been few surprises so far – most of the arguments being presented have been aired before – after so much time having been spent on legal technicalities as to why this case should not proceed, it’s nice to see the defendants arguments against the charges they face being presented in black and white.

On day one lawyer Ron Mansfield began by dealing with the various bits of evidence presented by the prosecution in the first part of the extradition hearing, mainly conversations between Dotcom and his former colleagues that seemed to demonstrate that the MegaUpload management were more than aware that they were running a copyright infringing business, that there would be legal ramifications if they were found out, and that a scheme that encouraged users to upload more infringing content would be particularly controversial.

Mansfield argued that the conversations presented in court had been cherry-picked out of a mountain of evidence, and then taken out of context and misrepresented. The US prosecution were aided in this process by the fact that some of the conversations had been in Dotcom’s native language, ie German, and prosecutors – Mansfield argued – had presented translations that served their case.

The legal man then threw the expected safe harbour line into the mix, noting that under both US and New Zealand law there are provisions that say that legitimate online businesses that inadvertently enable others to distribute unlicensed content cannot be held liable for that infringement. Google, Facebook and Twitter all rely on these safe harbours, Mansfield added, and making MegaUpload liable for its users’ infringement – and criminally liable at that – would set a very dangerous precedent.

The US record and movie industries are keen to distinguish MegaUpload from the likes of Google, Facebook and Twitter (though at the same time, they reckon those services too are unfairly exploiting the safe harbours). Of debate is whether Team Mega were “wilfully blind” to the infringement happening on their networks, and whether that increases their liabilities.

For his part, Mansfield was keen to portray MegaUpload as an entirely legitimate business, wheeling out the bloody ‘Mega Song’ to show how many big name artists backed the operation. The judge wisely asked for the song to be paused, officially because he didn’t see why it was relevant, but possibly because it’s so fucking irritating.

Yesterday, the defence moved on to another claim they have raised before, that the copyright crimes Dotcom et al are accused of are not covered by the extradition agreement between the US and New Zealand. The prosecution say that the MegaUpload management are guilty of fraud – a crime covered by the extradition treaty – but the defence team argue that, under US law, copyright infringement doesn’t constitute fraud.

It was partly because of this debate that the MegaUpload team previously argued that they needed to hire US legal experts, but restrictions on what the defendants can do with unfrozen funds from their former business prevented them from accessing this expertise. That makes the extradition hearing unfair, Team Mega claim, though presumably Mansfield hopes he can still win the argument on this point anyway.

The defence continues today, and is expected to conclude later this week.